SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 9th and 10th JUDICIAL DISTRICTS

Appeal by plaintiff from so much of an order of the District Court, Nassau County (S. Pardes, J.), entered October 10, 2003, as denied its motion for summary judgment.

Order insofar as appealed from unanimously affirmed without costs.

In this action to recover first-party no-fault benefits for medical equipment provided its assignors, plaintiff established its entitlement to summary judgment prima
facie by proof it submitted properly executed claim forms setting forth the fact and amount of the loss sustained (A.B. Med. Servs. v Eagle Ins. Co., 3 Misc 3d 8, 9 [App Term, 9th & 10th Jud Dists 2003]; Damadian MRI in Garden City v Liberty Mut. Ins. Co., 2 Misc 3d 128 [A], 2003 NY Slip Op 51702 [U] [App Term, 9th & 10th Jud Dists]). As defendant concededly failed to pay or deny the claims within 30 days of receipt (Insurance Law § 5106 [a];11 NYCRR 65.15 [g] [3]), defendant cannot avoid the consequence of the untimely denials (Central Gen. Hosp. v Chubb Group of Ins. Cos., 90 NY2d 195, 199 [1997]), namely the preclusion of its defense based on the assignors’ failures to attend examinations under oath (EUOs). In any event, defendant failed to prove that the EUO requests were timely (11 NYCRR 65.15 [d] [1]), or that when [*2]plaintiff filed the claims the insurance regulations provided for such a procedure (A.B. Med. Servs. v Eagle Ins. Co., 3 Misc 3d at 10; see also Ocean Diagnostic Imaging v Geico Ins., ___ Misc 3d ___ [A], [2004 NY Slip Op 50511 [U] [App Term, 9th & 10th Jud Dists]). However, the preclusion rule is inapplicable to a claim that the underlying traffic incident was a deliberate event staged in furtherance of a scheme to defraud (Matter of Metro Med. Diagnostics v Eagle Ins. Co., 293 AD2d 751, 752 [2002]) which claim, if substantiated, constitutes a complete defense to the action (Matter of Government Empls. Ins. Co. v Shaulskaya, 302 AD2d 522 [2003]). In our view, defendant’s [*3]
submissions sufficed to demonstrate a “founded belief that the alleged injury d[id] not arise out of an insured incident” (Central Gen. Hosp. v Chubb Group of Ins. Cos., 90 NY2d at 199).
Decision Date: October 20, 2004

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM : 2nd and 11th JUDICIAL DISTRICTS

Appeal by plaintiffs from so much of an order of the Civil Court, Kings County

(D. Silber, J.), entered on September 19, 2003, as denied their cross motion for summary judgment.

Order insofar as appealed from unanimously affirmed without costs.

Plaintiffs health care providers established their prima facie entitlement to summary judgment for assigned no-fault benefits by the submission of evidentiary proof that the statutory claims forms were mailed to defendant and that defendant failed to pay or deny the claims within the prescribed 30-day period (see Insurance Law § 5106 [a]; 11 NYCRR 65.15 [g] [3]; New York Hosp. Med. Ctr. of Queens v New York Cent. Mut. Fire Ins. Co., 8 AD3d 640 [2004]; Mary Immaculate Hosp. v Allstate Ins. Co., 5 AD3d 742 [2004]; Amaze Med. Supply v Eagle Ins. Co., 2 Misc 3d 128 [A], 2003 NY Slip Op 51701 [U] [App Term, 2d & 11th Jud Dists]). Moreover, defendant’s requests for examinations under oath did not toll the 30-day period in the [*2]absence of provisions in the applicable insurance regulations requiring a claimant to submit to examinations under oath (see Melbourne Med., P.C. v Utica Mut. Ins. Co., ___ Misc 3d ___, 2004 NY Slip Op 24221 [U] [App Term, 2d & 11th Jud Dists]; S & M Supply v Nationwide Mut. Ins. Co., 3 Misc 3d 138 [A], 2004 NY Slip Op 50557 [U] [App Term, 2d & 11th Jud Dists]; A.B. Med. Servs. v Eagle Ins. Co., 3 Misc 3d 8 [App Term, 9th & 10th Jud Dists 2003]).

However, defendant is not precluded from asserting the defense that the collision was in furtherance of an insurance fraud scheme, despite the untimely denial of the claims (see Matter of Metro Med. Diagnostics v Eagle Ins. Co., 293 AD2d 751 [2002]). The affidavit submitted by defendant’s special investigator was sufficient to demonstrate that defendant’s denial was based upon a “founded belief that the alleged injur[ies] do[] not arise out of an insured incident” (Central Gen. Hosp. v Chubb Group of Ins. Cos., 90 NY2d 195, 199 [1997]). Accordingly, since defendant demonstrated the existence of a triable issue of fact as to whether there was a lack of coverage (see id.), plaintiffs’ motion for summary judgment was properly denied.
Decision Date: September 29, 2004

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM : 9th and 10th JUDICIAL DISTRICTS

Appeal by plaintiff from an order of the District Court, Nassau County (H. Miller, J.), entered on August 18, 2003, which denied its motion for summary judgment.

Order unanimously reversed without costs, plaintiff’s motion for summary judgment granted, and matter remanded to the court below for a calculation of statutory interest and an assessment of attorney’s fees.

Plaintiff health care provider made out a prima facie showing of entitlement to recover no-fault benefits for services rendered to its assignors by submission of proof
that it had mailed the statutory claim forms, that defendant had received them, and that defendant did not pay or deny the claims within the 30-day statutory period (see Insurance Law § 5106 [a]; New York Hosp. Med. Ctr. of Queens v New York Cent. Mut. Fire Ins. Co., 8 AD3d 640 [2004]; Nyack Hosp. v State Farm Mut. Auto Ins. Co., 8 AD3d 250 [2004]; Damadian MRI in Elmhurst v Liberty Mut. Ins. Co., 2 Misc 3d 128 [A], 2003 NY Slip Op 51700 [U] [App Term, 9th &10th Jud Dists]).

Despite its untimely denial of benefits, defendant is not precluded from asserting the [*2]defense that the alleged injuries do not arise out of a covered accident (see Central Gen. Hosp. v Chubb Group of Ins. Cos., 90 NY2d 195, 201 [1997]). However, the affidavit of defendant’s attorney who had no personal knowledge of the facts, and who sets forth bare and conclusory allegations of fraud, constituted a submission in opposition to plaintiff’s motion which was insufficient to raise a triable issue of fact. Under these circumstances, the defendant’s submissions in opposition to plaintiff’s motion were insufficient to raise an issue of fact as to whether defendant’s denial of benefits was “premised on the fact or founded belief that the alleged injur[ies] do[ ] not arise out of an insured incident” (id. at 199).

Accordingly, plaintiff’s motion for summary judgment is granted, and the matter is remanded for the calculation of statutory interest and attorney’s fees pursuant to Insurance Law § 5106 (a) and the regulations promulgated thereunder.
Decision Date: September 20, 2004

[*1]

Supreme Court, Appellate Term, Second Department, September 20, 2004

APPEARANCES OF COUNSEL

Amos Weinberg, Great Neck, for appellant. Eric H. West, Long Island City, for respondent.

{**5 Misc 3d at 56} OPINION OF THE COURT

Memorandum.

Order unanimously affirmed without costs.

Plaintiff commenced this action to recover first-party no-fault benefits for medical supplies provided to its assignor. Thereafter, plaintiff moved for summary judgment in the amount of $980, which motion was denied by order entered September 10, 2003.

Contrary to the determination of the court below, plaintiff’s billing manager did not have to allege in his supporting affidavit that he had personal knowledge that the equipment was furnished to plaintiff’s assignor. Said affidavit set forth the billing manager’s duties so as to support the conclusion that the attached exhibits were sufficiently accurate and trustworthy to merit their admission into evidence pursuant to the business record exception to the hearsay rule (see CPLR 4518 [a]; People v Kennedy, 68 NY2d 569 [1986]), and said exhibits established that the supplies were furnished to the assignor.

A review of the record indicates that plaintiff established its prima facie entitlement to summary judgment by showing that it submitted a properly completed claim form to defendant for $980 (see Insurance Law § 5106 [a]; Mary Immaculate Hosp. v Allstate Ins. Co., 5 AD3d 742 [2004]; Damadian MRI in Elmhurst v Liberty Mut. Ins. Co., 2 Misc 3d 128[A], [*2]2003 NY Slip Op {**5 Misc 3d at 57}51700[U] [App Term, 9th & 10th Jud Dists 2003]). It is uncontroverted that defendant had until July 17, 2003 to pay or deny plaintiff’s claim. The plaintiff’s billing manager asserted that the defendant’s denial was untimely and he submitted a photocopy of an envelope, postmarked August 29, 2003, which allegedly contained the denial form. Defendant, however, submitted the affidavit of its claims adjuster who attested to the routine procedure and practice of her office, in the regular course of its business, which indicates that the denial had been duly addressed and mailed to plaintiff on July 17, 2003. In view of the foregoing, we find that the court below properly determined that a triable issue of fact existed (see Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]). Accordingly, plaintiff’s motion for summary judgment was properly denied.

McCabe, P.J., Covello and Tanenbaum, JJ., concur.

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM : 9th and 10th JUDICIAL DISTRICTS

Appeal by plaintiff from so much of an order of the District Court, Nassau County (H. Miller, J.), entered August 18, 2003, as denied its motion for summary judgment.

Order insofar as appealed from unanimously affirmed with $10 costs.
Plaintiff commenced this action to recover $2,637.07 in first-party no-fault benefits for medical services it rendered to its assignor pursuant to Insurance Law §
5101 et seq. Thereafter, plaintiff moved for summary judgment and defendant cross-moved for summary judgment dismissing the complaint. Both motions were denied by order entered August 18, 2003.

Contrary to the determination of the court below, the affidavit of plaintiff’s billing manager need not have stated that he had personal knowledge that the services were rendered to the assignor. Said affidavit need only have established his duties as the billing manager sufficient to support the inference that the attached exhibits were sufficiently accurate and trustworthy to merit their admission into evidence pursuant to the business record exception of the hearsay rule (see CPLR 4518 [a]; People v Kennedy, 68 NY2d 569 [1986]). The affidavit herein was clearly adequate and laid a proper foundation for the court to consider the exhibits attached thereto pursuant to CPLR 4518 (a), and said exhibits established that the services were rendered to the assignor.

A review of the record indicates that plaintiff established its prima facie entitlement [*2]to summary judgment by showing that it submitted a properly completed proof of claim and the amount of the loss (see Insurance Law § 5106 [a]; Mary Immaculate Hosp. v Allstate Ins. Co., 5 AD3d 742 [2004]; Amaze Med. Supply Inc. v Eagle Ins. Co., 2 Misc 3d 128 [A], 2003 NY Slip Op 51701 [U] [App Term, 2d & 11th Jud Dists]). Defendant, however, failed to deny the claim within the statutory 30-day claim determination period (11 NYCRR 65.15 [g] [3]), and its requests for examinations under oath did not toll the 30-day period inasmuch as the insurance regulation in effect at the time plaintiff submitted its claim did not contain a provision requiring a claimant to appear for an examination under oath (see A.B. Med. Servs. PLLC v Eagle Ins. Co., 3 Misc 3d 8 [2004]; A.B. Med. Servs. PLLC v Lumbermens Mut. Cas. Co., 2003 NY Slip Op 51392 [U] [App Term, 2d & 11th Jud Dists]). Consequently, defendant is precluded from raising most defenses (see Presbyterian Hosp. in City of N.Y. v Maryland Cas. Co., 90 NY2d 274, 282 [1997]). We note that the cases of Han-Ki Lee v American Transit Ins. Co. (304 AD2d 713 [2003]) and Galante v State Farm Ins. Co. (249 AD2d 506 [1998]) are distinguishable on their facts.

An untimely denial, however, did not preclude defendant from asserting the defense that the collision was a staged event in furtherance of an insurance fraud scheme (see Matter of Metro Med. Diagnostics v Eagle Ins. Co., 293 AD2d 751 [2002]). The investigator’s affidavit set forth sufficient facts to demonstrate that defendant
possessed a “founded belief that the alleged injur[ies] do[] not arise out of an insured incident” (Central Gen. Hosp. v Chubb Group of Ins. Cos., 90 NY2d 195, 199 [1997]).
As a result, because defendant demonstrated the existence of a triable issue of fact as to whether there was a lack of coverage (see id.), plaintiff’s motion for summary
judgment was properly denied (see Ocean Diagnostic Imaging, P.C. v State Farm Mut. Auto. Ins. Co., (No. 2003-1289 NC, decided herewith and A.B. Med. Servs. PLLC v State Farm Mut. Auto. Ins. Co., (No. 2003-799 NC, decided herewith).
Decision Date: September 17, 2004

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM : 9th and 10th JUDICIAL DISTRICTS

Appeal by defendant from an order of the District Court, Nassau County (A. Cooper, Sr., J.), dated March 5, 2003, denying its cross motion for summary judgment and granting plaintiff’s motion for summary judgment.

Order unanimously modified by providing that plaintiffs’ motion for summary judgment is denied; as so modified, affirmed without costs.

In this action to recover assigned first-party no-fault benefits, plaintiffs’ affidavit in support of their motion for summary judgment set forth only that the affiant is a “practice and billing manager” and an “officer” of “plaintiff” notwithstanding that there are three named plaintiffs each asserting independent standing as an insured’s assignee. As we cannot assume that the affiant acted on behalf of one particular plaintiff or on behalf of all of the plaintiffs (A.B. Med. Servs. v Allstate Ins. Co., NYLJ, Mar. 18, 2004 [App Term, 9th & 10th Jud Dists]), such an affidavit is “insufficient to establish that plaintiffs provided defendant with properly completed claim forms” (id.). We further note that as to D.A.V. Chiropractic P.C., the record before us contains no assignment of benefits form on plaintiff’s behalf, an additional reason for the motion’s denial as to this plaintiff. Accordingly, plaintiff’s motion for summary judgment [*2]should have been denied upon plaintiffs’ failure to make out a prima facie case.

With respect to defendant’s cross motion for summary judgment, upon the papers presented, defendant failed to establish its entitlement to judgment dismissing the action as a matter of law. Defendant’s claim that the assignors failed to cooperate with its requests to examine them under oath is without merit because when plaintiffs filed their claims, there was no provision in the insurance regulations for such a procedure (compare 11 NYCRR 65.15 [d] [3]; 65.2 [a], with 11 NYCRR 65-1.1 [d]; 65-3.5 [e], eff. April 5, 2002; e.g. King’s Med. Supply Inc v Progressive Ins., 3 Misc 3d 126 [A], 2004 NY Slip Op 501312 [U] [App Term, 2d & 11th Jud Dists]). Defendant’s argument that its policy provisions require an insured’s cooperation with an examination under oath is likewise misplaced in that the mandatory no-fault endorsement “cannot be qualified by . . . conditions . . . of the liability portions of the policy” (Utica Mut. Ins. Co. v Timms, 293 AD2d 669, 670 [2002]).

However, for the reasons set forth in Ocean Diagnostic Imaging P.C. v State Farm Mut. Auto. Ins. Co. (No. 2003-1289 N C decided herewith), involving the same assignors and the same traffic incident, we find defendant’s claim, that the underlying traffic incident was staged pursuant to a scheme to defraud, to be supported by sufficient factual allegations in admissible form to require a trial thereon, albeit insufficiently established to warrant accelerated judgment in defendant’s favor.
Decision Date: September 17, 2004

[*1]

Supreme Court, Appellate Term, Second Department, September 17, 2004

APPEARANCES OF COUNSEL

Amos Weinberg, Great Neck, for appellant. Bruno Gerbino & Macchia LLP, Melville, and Rivkin Radler LLP, Uniondale (Evan H. Krinick and Stuart M. Bodoff of counsel), for respondent.

{**5 Misc 3d at 46} OPINION OF THE COURT

Memorandum.

Order insofar as appealed from unanimously affirmed with $10 costs.

Plaintiff, a health care provider, seeking to recover assigned first-party no-fault benefits, established a prima facie entitlement to summary judgment by the submission of a complete proof of claim and the amount of the loss (see Insurance Law § 5106 [a]; Mary Immaculate Hosp. v Allstate Ins. Co., 5 AD3d 742 [2004]; Amaze Med. Supply v Eagle Ins. Co., 2 Misc 3d 128[A], 2003 NY Slip Op 51701[U] [App Term, 2d & 11th Jud Dists 2003]). Defendant failed to deny the claim within the statutory 30-day claim determination period (11 NYCRR 65.15 [g] [3]). Defendant’s requests for examinations under oath did not toll the 30-day period, inasmuch as the insurance regulation in effect at the time plaintiff submitted its claim did not contain a provision requiring a claimant to appear for an examination under oath (see A.B. Med. Servs. PLLC v Lumbermens Mut. Cas. Co., 2003 NY Slip Op 51392[U] [App Term, 2d & 11th Jud Dists 2003]). Accordingly, defendant is precluded from raising most defenses (see Presbyterian Hosp. in City of N.Y. v Maryland Cas. Co., 90 NY2d 274, 282 [1997]).

However, an untimely denial does not preclude a defendant from asserting the defense [*2]that the collision was a staged event in furtherance of an insurance fraud scheme (see Matter of Metro Med. Diagnostics v Eagle Ins. Co., 293 AD2d 751 [2002]). The investigator’s affidavit set forth sufficient facts to demonstrate that defendant possessed a “founded belief that the alleged injur[ies] do[ ] not arise out of an insured incident” (Central Gen. Hosp. v Chubb Group of Ins. Cos., 90 NY2d 195, 199 [1997]). As a result, because defendant demonstrated the existence of a triable issue of fact as to whether there was a lack of coverage (see id.), plaintiff’s motion for summary judgment was properly denied.

McCabe, P.J., Rudolph and Angiolillo, JJ., concur.

—[*1]

In an action to recover no-fault medical payments, the plaintiffs appeal from an order of the Supreme Court, Nassau County (Cozzens, J.), dated October 1, 2003, which denied their motion for summary judgment.

Ordered that the order is affirmed, without costs or disbursements.

In support of their motion for summary judgment, the plaintiffs submitted evidentiary proof that the defendant insurance company had not responded to their February 19, 2003, and January 15, 2003, claims for no-fault medical benefits within 30 days as required by Insurance Law § 5106 (a) and 11 NYCRR 65.15 (g) (3). In opposition to the motion, the defendant submitted documentary evidence and an affidavit of an employee asserting that the same claims had originally been billed over one year earlier and that timely denial of claim forms had been mailed to the plaintiffs at that time.

The evidence submitted by the plaintiffs satisfied their burden of establishing a prima facie entitlement to judgment as a matter of law (see Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985]). However, the defendant submitted admissible evidence in opposition to the motion, which raised triable issues of fact as to the dates on which the plaintiffs mailed the no-fault claims to the defendant (see New York Hosp. Med. Ctr. of Queens v Country-Wide Ins. Co., 295 AD2d 583, 585 [2002]) and whether the defendant properly denied those claims (see Hospital for Joint Diseases v Nationwide Mut. Ins. Co., 284 AD2d 374, 375 [2001]). Accordingly, the Supreme Court correctly denied the motion for summary judgment. Florio, J.P., S. Miller, Rivera and Lifson, JJ., concur.

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM : 2nd and 11th JUDICIAL DISTRICTS

Appeal by plaintiff from so much of an order of the Civil Court, Kings County (R. Garson, J.), entered June 10, 2003, as denied its motion for partial summary judgment.

Order insofar as appealed from unanimously reversed without costs, plaintiff’s motion for partial summary judgment granted in the principal sum of $2,365 and matter remanded to the court below for a calculation of statutory interest and an assessment of attorney’s fees.

Plaintiff sues to recover first-party no-fault benefits for medical supplies furnished to its assignor. Plaintiff established a prima facie case by the submission of a properly
completed claim (see Amaze Med. Supply Inc. v Eagle Ins. Co., 2 Misc 3d 128 [A], 2003 NY Slip Op 51701 [U] [App Term, 2d & 11th Jud Dists]). The burden then shifted to defendant to show the existence of a triable issue of fact (see Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]).

Although defendant timely denied the claim for $765 within 30 days of its receipt (Insurance Law § 5106; 11 NYCRR 65.15 [g] [3]), the peer review report upon which the denial of benefits was predicated was not in admissible form and was therefore insufficient to defeat [*2]plaintiff’s summary judgment motion. An affirmation of a chiropractor does not constitute competent evidence (see CPLR 2106; see also Cubero v DiMarco, 272 AD2d 430 [2000]).
With respect to plaintiff’s claims for $670 and $930, defendant failed to deny them within 30 days of their receipt. Thus, defendant is precluded from raising the defense of medical necessity as to those claims (see Central Gen. Hosp. v Chubb Group of Ins. Cos., 90 NY2d 195, 199 [1997]).

Accordingly, inasmuch as defendant failed to raise a triable issue of fact, plaintiff’s motion should have been granted, and the matter is remanded to the court below for a calculation of the statutory interest and an assessment of attorney’s fees due on $2,365 (Insurance Law § 5106 [a]; 11 NYCRR 65.15 [h] [1]; 65.17 [b] [6]; see also St. Clare’s Hosp. v Allstate Ins. Co., 215 AD2d 641 [1995]).
Decision Date: July 21, 2004

—[*1]

In an action to recover no-fault medical payments under insurance contracts, the defendant appeals from so much of an order of the Supreme Court, Nassau County (Parga, J.), dated April 4, 2003, as granted those branches of the plaintiffs’ motion which were for summary judgment on the causes of action to recover no-fault medical payments allegedly due to Mary Immaculate Hospital, as assignee of Scaarlin Morales-Soriano, and to recover no-fault medical payments allegedly due to Brooklyn Hospital Center, as assignee of Alberto Lopez.

Ordered that the order is reversed insofar as appealed from, on the law, with costs, and those branches of the motion which were for summary judgment on the causes of action to recover no-fault medical payments allegedly due to Mary Immaculate Hospital, as assignee of Scaarlin Morales-Soriano, and to recover no-fault medical payments allegedly due to Brooklyn Hospital Center, as assignee of Alberto Lopez, are denied.

A complete proof of claim is a prerequisite to receiving no-fault benefits (see Insurance Law § 5106). Written proof of such a claim must be submitted to the insurance company within 180 days after the date services were rendered or 180 days after the date written notice of the claim was given to the insurance company, whichever is later (see 11 NYCRR 65.12). Within 30 days of receiving a claim, the insurer shall either pay or deny the claim in whole or in part (see 11 [*2]NYCRR 65.15 [g] [3]). This 30-day period may be extended by a timely demand by the insurance company for further verification of a claim (see 11 NYCRR 65.15 [d] [1]). A claim need not be paid or denied until all demanded verification is provided (see 11 NYCRR 65.15 [g] [1] [i]; Westchester County Med. Ctr. v New York Cent. Mut. Fire Ins. Co., 262 AD2d 553 [1999]). In the event an insurer fails to timely deny a claim or request verification from the hospital, the insurer is precluded from asserting that the claim was untimely or incomplete (see Presbyterian Hosp. in City of N.Y. v Maryland Cas. Co., 90 NY2d 274, 282 [1997]; New York Hosp. Med. Ctr. of Queens v Country-Wide Ins. Co., 295 AD2d 583 [2002]; St. Clare’s Hosp. v Allcity Ins. Co., 201 AD2d 718 [1994]).

Despite the fact that the proof of claim submitted by Brooklyn Hospital Center, as assignee of Alberto Lopez (hereinafter Brooklyn Hospital), was incomplete, and the proof of claim submitted by Mary Immaculate Hospital, as assignee of Scaarlin Morales-Soriano (hereinafter Mary Immaculate), was untimely, both of these plaintiffs demonstrated a prima facie showing of entitlement to judgment as a matter of law with evidence that their claims were neither denied nor paid within the requisite time period (see Insurance Law § 5106 [a]; 11 NYCRR 65.15 [g] [3]; St. Clare’s Hosp. v Allcity Ins. Co., supra). In opposition, the defendant offered sufficient evidence to raise a triable issue of fact whether Mary Immaculate’s claim was denied as untimely, and whether the defendant timely sought verification of Brooklyn Hospital’s claim (see 11 NYCRR 65.12, 65.15 [d] [1]; St. Luke’s-Roosevelt Hosp. v American Tr. Ins. Co., 274 AD2d 511 [2000]; Westchester County Med. Ctr. v New York Cent. Mut. Fire Ins. Co., supra). Thus, summary judgment should not have been granted on those causes of action.

The parties’ remaining contentions either are unnecessary to address in light of the determination or are without merit. Santucci, J.P., Goldstein, Luciano and Mastro, JJ., concur.